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Referring lawyers

Do you have a client whose case requires the experience of skilled litigators who handle many jury trials each year? At Berman & Simmons, we regularly work on referred cases. We value our relationships with the many attorneys and law firms that ask us to help on their accident and personal injury cases. When you refer a case to us, you and your client benefit. We have a long history of trying cases in the courtroom and turning difficult, complex accident and personal injury cases into high-value settlements.. more...

Spring 2009

In This Issue:

• Putting the Client First
• Death Of A Loved One: Advising Your Client
• The Underinsured Motorist Offset: The Policy Controls

Referral Counsel
Trial Counsel
Co-Counsel

Whether we act as referral counsel, trial counsel or co-counsel, Berman & Simmons works with lawyers all over Maine to help injured clients. We have the experience, resources, perspective, insight and energy to make a difference in clients’ lives. If you or someone you know needs advice about a case that may end up in court, call us to find out what we can do to make the case come out right.

Putting The Client First
Author: Jodi L. Nofsinger, Esq.

Twelve years ago I was working as a Superior Court law clerk and interviewing for a post-clerkship position at law firms. This was a dispiriting process. Many of the lawyers who I met seemed to find little joy in their careers. I believed that all I was looking for was to work in a firm where I could get into the courtroom - the sooner, the better. Since that time I have come to realize that, as thrilling as it is for me to handle jury trials, my day-to-day job satisfaction is mostly derived from helping my clients wrestle with much smaller issues, like the unpaid ambulance bill. It is through our working relationship that I am able to obtain the best results for the client, as it provides the foundation for strong, trust based advocacy, and ultimately, for winning the case.

It is easy to work with calm, rational clients who are not under financial stress. The greater challenge is to work with emotional or financially-strapped clients. Injures do not discriminate. They affect all types of people. In spite of individual differences, however, all injured clients need and deserve the best possible legal representation. This is a service business. It is providing the best service to people that is the most rewarding part of my job as a lawyer. Read more...

Death Of A Loved One: Advising Your Client
Author: William D. Robitzek, Esq.

There are few sadder things a lawyer can do than to meet with a family who has just recently lost a loved one. The feeling can be compounded by the fact that our legislature has imposed limits on the amount that the family can recover. In meeting with the family, it is important to help them understand these limitations and the steps that can be taken to maximize recovery.

There are five categories of damages available through a combination of claims under Maine's wrongful death statute and Maine's survival statute (which preserves the decedent's claims following death).

There are three areas of special damages: medical expenses, funeral expenses and pecuniary loss. Medical expenses in a death/survival case are calculated in the same way that they are in any personal injury case. The attorney will need to assemble all of the medical records and bills and determine which of those are causally related to the incident which ultimately caused the death. In cases involving near-instantaneous death, there may be no medical expenses except perhaps a bill for the ambulance that arrived at the scene.

For a prolonged illness preceding death, all the medical records and bills need to be reviewed carefully. This is particularly so if the deceased had medical conditions that predated the accident at issue. An attempt will have to be made to separate out the pre-existing condition expenses from those that are related to the accident.

The second category of special damages is that of funeral expenses. Typically, when you meet with a client, he or she will have a funeral bill or other charges. If not, then you must obtain this paperwork.

The last category of special damages is pecuniary loss. These damages are intended to replace economic benefits of which the decedent's statutory beneficiaries have been deprived as a result of both the pre-death disability and the death. Read more...

The Underinsured Motorist Offset: The Policy Controls
Author: Robert H. Furbish, Esq.

Robert H. Furbish, Esq.One issue frequently faced in personal injury cases is the effect of payments made by an underinsured motorist or her liability insurance carrier upon our injured client's claim against her own underinsured motorist coverage.

Underinsured motorist carriers are quick to argue that any payment from the underinsured tortfeasor or his insurer is to be deducted from the uninsured motorist limits, without regard to the damages suffered by the insured. A closer look at the case law shows that things are not so clear-cut.

Cobb v. Allstate involved the following offset language from an underinsured motorist policy:

"Damages payable will be reduced by all amounts paid by the owner or operator of any uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other auto policy."

While there is an offset, there is a good argument that this language contemplates that the reduction will be made from the insured's damages as opposed to her UM limits.

The Law Court has suggested that in some circumstances the offset is from the UM limits, rather than the total damages, but it has not so held in the context of the Cobb policy language.

The Court's statement that 24-A M.R.S.A. § 2902(4) "requires that an underinsurer's obligation be reduced by the amount of any payment received from a tortfeasor," is not inconsistent with the application of the offset from damages rather than from the UM limits. Moreover, the uninsured motorist statute, 24-A M.R.S.A. § 2902(4), specifically makes the offset subject to the terms of the policy.

While the Court in Connolly v. Royal Globe Insurance Co., did hold that the offset was to be from the combined limits of the two UM policies rather than from the insured's total damages, the Court does not cite or rely upon any policy language. Rather, the Court referred only to the UM statute and appeared to hold only that the statute does not require that the offset be made from the insured's damages.

However, there remains a possibility of arguing, on the basis of the actual policy language and the case law interpreting similar language, that the Allstate UM policy interpreted in Cobb contemplates an offset from damages rather than limits. The Allstate policy language is, at the very least, ambiguous on that point.

The Law Court's most recent decision, in Jipson v. Liberty Mutual Fire Ins. Co., supports the notion that the policy language controls. There, the Court, relying, in part, on Connolly, held that the UM statute did not require that the offset due the UM carrier for liability payments be made from the insured's damages, but held instead that it was to be made from the UM limit.

The Law Court addressed Jipson's argument that the specific language of the UM policy at issue was ambiguous as to whether it provided for an offset from damages or limits and therefore the interpretation favoring the insured should be adopted. The policy language in Jipson was:

"Any amounts otherwise payable for damages under this coverage shall be reduced by all sums... paid because of the ‘bodily injury' by or on behalf of persons or organizations who may be legally responsible."

Rejecting the argument that the phrase "amounts otherwise payable as damages" was susceptible to the interpretation that the offset was to be from damages, the Court stated:

"The phrase ‘under this coverage' explains, modifies, limits and controls the phrase 'amounts otherwise payable for damages.' The policy is not reasonably susceptible to any interpretation other than that the offset be taken from the $100,000 coverage limit, e.g. ‘the amounts otherwise payable for damages under this coverage,' and is therefore unambiguous."

The UM policy language quoted in Cobb is missing the critical modifying phrase "under this coverage" or any equivalent language. Thus, the argument that the policy language favors an offset from damages rather than from limits, or that it is at least ambiguous on this point, is left open by Jipson.

It is thus imperative that in any case where the client's damages exceed the available coverage, the language of the UM policy be closely examined.

PuttingThe Client First, continued

The first meeting, or intake, is crucial to setting the right tone. Most clients come to the intake nervous, worried and confused. My goal is for the client to leave calm, well-informed, and with the belief that I will take good care of them. We have tremendous responsibilities in representing our clients. In some ways, however, we are no different than plumbers or carpenters. Professional and skilled-trade workers alike possess knowledge and skills that their clients or customers do not have. When a client hires a lawyer, he is entrusting a person he barely knows with a significant and highly-personal matter. Earning and maintaining the client's confidence will flow naturally from doing good work.

People who are injured due to the negligence of others come to me with a number of issues that require prompt action. Although the fallout from being involved in an accident is familiar to lawyers, it is daunting and uncharted territory for most clients. Often the client is dealing with multiple insurance companies. He is struggling to get his car repaired and to obtain an allowance for a rental vehicle. He may not understand which insurer (his own, or the other driver's) can or should pay for the damage. He has been asked to provide interviews, complete complicated forms, and sign medical authorizations. On top of these practical nuances, he may be suffering from debilitating injuries, confused about his medical diagnosis and likely outcome, and laboring to make ends meet while disabled from work. Meanwhile, his medical bills continue to mount, and medical billing personnel may be refusing to accept his insurance or government health care plan.

Taking the best care of an injured client is a continuous process of communication and action designed to leave the client with only two responsibilities: to take care of his own medical needs, and to keep me informed of his medical progress and other significant developments. At the first meeting, I want to relieve him of all other burdens by taking over responsibility for communicating with the insurers, coordinating the payment of bills, and providing him with clear information about what to expect from the process.

Before the client leaves the first meeting I make a conscious effort to impress upon him that I really do care about him and I am passionate about my work. It took me several years practicing law to realize that many clients are intimidated by the process and can be shy or self-conscious about contacting me. A number of times I heard clients say, "I don't want to take up your time, I know you are busy." Now, I tell every client that I want him to take up my time, because I need to understand what he is going through in order to achieve the best result in the case.

One of the greatest complaints that clients make about their lawyers is that they do not return phone calls. This problem can be avoided by taking a team approach. To be well cared for, clients need to be supported, not just by me, but also by my staff. From the outset, I tell my clients who they will be working with on my staff. They leave the meeting understanding that my staff is there to address their needs and will keep me well-informed of all issues. With that said, I also make clear to my client that I will call back promptly if he wants to hear from me.

Through taking good care of my client, we develop rapport and trust. This makes the process that we will go through together less difficult for both of us. We are better able to make good decisions, to strategize about the case, and to obtain the best possible result. If we are unable to settle the case, then I still get to experience the thrill of trying the case to a jury. For me, this is an opportunity to take good care of this person who has put himself in my hands: to put him in the hands of a jury and convince them to take care of him too.

Death Of A Loved One: Advising Your Client continued

The most straightforward case is a working person who earned a living with a salary. Multiplication of what the person earned by the years left in the remainder of his or her work life yields a ballpark estimate of the loss. From this or any other measure of earned income, you will need to deduct the amount which the decedent would have incurred in expenses for himself over that same period of time. The resulting net savings (sometimes called the "net estate") are what would have been left over for the beneficiaries and estate. It will often be necessary to retain an economist to develop this part of the case.

The death of a minor or a single adult who provided no support to anyone else will typically result in no recovery for the beneficiaries under the death act. However, it may still be possible in some cases to use statistical projections to support a "net estate" recovery under the survival act. There are two categories of intangible damages: conscious pain and suffering (survival claim) and loss of comfort, society and companionship (death act claim).

Because conscious pain and suffering is preserved by the statute, it is not subject to any limitation. The essential component of this claim is that the decedent must have experienced a period of consciousness prior to death. There are several sources of information concerning consciousness. First, consciousness may be proven by statements from bystanders to the accident or emergency personnel who appeared on the scene. Such witnesses may be able to provide information, both from a lay point of a view, and perhaps, from an expert perspective, concerning whether there were signs of consciousness. Second, information obtained from the medical providers and family members is important. It is necessary to perform a detailed review of the medical records for signs of consciousness.

There is no claim for conscious pain and suffering where death is instantaneous and not preceded by an awareness that injury or death was going to ensue. Likewise, there will be no recovery for conscious pain and suffering where an injury results in an instantaneous coma that precedes death, regardless of the duration of the coma. Finally, there may be periods of time during which the decedent was not conscious, either because of a medication-induced coma or recurring unconsciousness due to a medical condition.

Keep in mind that indistinct noises and even reactions to external stimuli may not be determinative of consciousness. There are occasions in which expert opinion will be required to establish that the decedent was conscious prior to death.

The last category of damages available in a death/survival action is the loss of the comfort, society and companionship of loved ones. This is the loss experienced by those who are left behind and grieve the loss of the decedent. Compensation in this category is currently limited to a maximum of $500,000. This maximum applies regardless of how closely knit the family or how beloved the decedent. The $500,000 is not a presumptive award. It must be proven.

To prove loss by the surviving family, you must obtain a full understanding of each family member's relationship with the decedent. Ask the family to collect photographs or other memorabilia that show the decedent with members of the family. In addition, gather items such as the visitor book from the funeral home, articles on the death of the victim, letters, and anything else helpful in establishing the personality of the decedent and his value to those left behind.

For a decedent who left behind minor children, explore the value of the decedent in the care, upbringing and mentoring relationship with children. The decedent's participation in school events or other important childhood events will help illustrate this element of loss.

In sum, because there are limitations on damages in a death/survival case, only a comprehensive approach to developing the damages case will ensure the best possible result for the family. The experienced practitioner will realize that the limitations can be a source of tension among the potential beneficiaries. Some may have suffered much greater losses, both emotional and financial, than others. The law, however, apparently in an effort to minimize family strife in this already stress-filled period, does not encourage intra-family disputes as to who suffered more. The lawyer will need to be sensitive to these relationships and how they might affect a beneficiary's participation in the case, even though the law is blind to these issues in determining how the funds will be distributed.

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